Fairley v. Patterson, 73-1566.

Citation493 F.2d 598
Decision Date01 May 1974
Docket NumberNo. 73-1566.,73-1566.
PartiesJ. C. FAIRLEY et al., etc., Plaintiffs-Appellants-Cross Appellees, v. Joe T. PATTERSON, Attorney General of the State of Mississippi, et al., etc., Defendants-Appellees, Olyer Blackwell, etc., Intervenor-Appellant, W. U. (Bill) Sigler et al., etc., Defendants-Appellees-Cross Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

COPYRIGHT MATERIAL OMITTED

Constance Iona Slaughter, Forest, Miss., Frank R. Parker, George Peach Taylor, Herman Wilson, Jackson, Miss., Edward J. Currie, Jr., Hattiesburg, Miss., for plaintiffs-appellants.

John G. Kester, Washington, D. C., for intervenor-appellant.

A. F. Summer, Atty. Gen. of Miss., William A. Allain, Asst. Atty. Gen., Jackson, Miss., for State of Miss.

Stone D. Barefield, R. W. Heidelberg, D. Gary Sutherland, James F. McKenzie, Hattiesburg, Miss., for Bd. of Supervisors.

Before TUTTLE, DYER and MORGAN, Circuit Judges.

TUTTLE, Circuit Judge:

This appeal is the consolidation of two suits from the district court, the first involving reapportionment and the second a request for attorneys' fees and expenses in the first. The reapportionment suit is brought under the fourteenth and twenty-sixth amendments to the United States Constitution challenging the district court's approval of the exclusion by county officials of a "class" of college students from the reapportionment of Forrest County, Mississippi. In the second, error is charged the district court by the appellees in the granting of attorneys' fees and by the appellants in the limiting of the award of attorneys' fees and the denial of costs.

FACTS

This suit was filed on July 12, 1967, as a complaint under the Voting Rights Act of 1965, 42 U.S.C.A. § 1973 et seq., and the fourteenth and fifteenth amendments to the United States Constitution. The plaintiffs, representing the class of all qualified voters of Forrest County, Mississippi, sued the defendant state officials to enjoin the implementation and enforcement of an amendment to section 2870 of the Mississippi Code permitting the five members of the Forrest County Board of Supervisors to be elected at-large rather than from single voting districts.

The Supreme Court reversed the judgment of a three-judge district court, which had dismissed the complaint, holding that section 5 of the Voting Rights Act, 42 U.S.C.A. § 1973c, applied. Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), rev'g., Fairley v. Patterson, 282 F.Supp. 164 (S.D.Miss.1967). On remand, the district court entered a temporary restraining order prohibiting section 2870 of the Mississippi Code from being implemented until the state officials had complied with section 5 of the Voting Rights Act.1

The election for the Board of Supervisors of Forrest County was thereafter conducted, using the former single district balloting. The five single districts, however, had populations varying from approximately 1,074 to 26,992. The Board of Supervisors recognized in 1969 the need to redistrict the county to conform with constitutional requirements and hired an organization known as Comprehensive Planners, Inc. (CPI) to draw up a redistricting plan. Although CPI submitted several plans, no action was taken.

On December 29, 1971, Olyer Blackwell moved to intervene as a plaintiff and member of the original plaintiffs' class and filed a complaint challenging under the fourteenth amendment the apportionment of the county's voting districts pursuant to section 2870 of the Mississippi Code. The district court subsequently granted Blackwell leave to intervene, held that the apportionment of Forrest County violated the one man, one vote requirement of the fourteenth amendment, and ordered the Board of Supervisors to submit a constitutional reapportionment plan and conduct registration of voters within the new voting districts of the county.

After the initial hearing on the intervenor's complaint, the record reflects that the intervenor took a passive role in the further proceedings. When the defendants-supervisors were tardy in coming forward with a reapportionment design, the district court invited the original plaintiffs to submit a plan.2

Subsequently, the Board of Supervisors also presented a plan which was acceptable to the intervenor and the district court. However, the proposal prepared by CPI and submitted to the court by the Board of Supervisors, was not acceptable to the original plaintiffs.3 In order to achieve population equality between voting districts, CPI utilized final population figures from the 1970 Decennial Census, obtained from the Bureau of the Census, United States Department of Commerce. CPI, however, also consulted the records of the University of Southern Mississippi and William Carey College, both college level institutions in Forrest County. Based solely on these records, CPI subtracted from the census population figures all students at the two colleges who (1) were unmarried, (2) lived on the campus in dormitories or fraternity houses, and (3) were shown on the spring 1970 college records to have an address outside Forrest County. This class of students totalled 3,077 persons, and they were totally omitted from the reapportionment calculations.4

                       FORREST COUNTY VOTING
                            DISTRICTS       
                                        Population
                           Population   Excluding
                District   By Census     Students 
                    1        10,995        --
                    2        10,880        --
                    3        10,885        --
                    4        11,449      10,961*
                    5        13,740      11,051**
                

The population variance between the smallest and the largest districts is 25.5% if this class of students is included; without this class of students, the variance is 1.6%.

When the original plaintiffs objected to the exclusion of this class of students, the district court stated:

"The home addresses of these students were obtained by the college officials from the registration cards filed by the students themselves with the college officials for the spring quarter of 1970 and constituted an expression from each of said students as to his permanent residence at that time. All of the students so excluded were nonresidents of Forrest County and were only transient, short-term or temporary inhabitants of the county. The inclusion of these nonresidents oncampus dormitory and fraternity house students, most of whom were concentrated in district no. 5, would distort the equalization of population required by the `one man, one vote\' rule and would have the effect of granting to the permanent residents of those districts greater voting power than other citizens of Forrest County.
"All students residing in dormitory and fraternity houses whose college record indicated permanent home addresses within Forrest County were included in the total population count and allocated to the respective districts where their home addresses were located.
"Inclusion of other students residing off campus and throughout the City of Hattiesburg and Forrest County would not distort the `one man, one vote\' rule. These students are scattered over a much wider geographical area so that inclusion or exclusion would have little or no bearing on equalization of population among the various districts."

The appellants, who only include the original plaintiffs because the intervenor did not object to the county's plan, find fault with these findings on three grounds. First, appellants argue that the exclusion of this class of students creates a variance in excess of that allowed under the fourteenth amendment one man, one vote standards. Without sufficient verification that this class of students' residence lies outside the county, appellants insist that the pure census figures must be used in calculating the population equality between districts. Second, under a traditional equal protection syllogism, appellants assert that this class of students was unreasonably classified as non-residents in violation of the fourteenth amendment. Under this theory, if the students choose to exercise their franchise in Forrest County, their vote will be diluted by the unequal size of voting districts. Lastly, appellants postulate that the exclusion discriminates against a class predominantly eighteen to twenty year olds and therefore violates the twenty-sixth amendment.

STANDING

As an initial argument on appeal which was not raised in the district court, appellees charged the appellants and their class with lack of standing. If true, this Court would have no jurisdiction, U.S.Const. art. III, § 2, and would be cause for dismissal, Fed.R.Civ.P. 12(h)(3).

Plaintiffs set out the class they represent in their amended complaint:

"3. Plaintiffs are all adult negro citizens of Mississippi and of the United States, and are citizens, residents and qualified electors of Forrest County, Mississippi.
"4. Plaintiffs bring this action on behalf of themselves and all other persons similarly situated as qualified electors of Forrest County and as potential candidates for Board of Supervisors of Forrest County, pursuant to Rule 23 of the Federal Rules of Civil Procedure . . . ."

The intervenor in his "Motion to Intervene as Plaintiff" characterized himself as "a member of the class set forth in Paragraph No. 4 set out above of the original complaint on file herein and is a qualified elector of Forrest County, Mississippi, and of Supervisor District No. 2 of said County. . . ." (Emphasis added).

The Supreme Court in defining the parameters of standing in United States v. S. C. R. A. P., 412 U.S. 669, 689-690, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), pointed to two indicia of standing: (1) As "injury in fact" and (2) That the injury not be so attenuated as to be imaginary.5 Id. at 688-689, n. 14. The issue then becomes whether the original plaintiffs and their class of qualified electors have sustained sufficient injury to satisfy this standing criterion.

Under appellants' first claim, a...

To continue reading

Request your trial
145 cases
  • McConchie v. Scholz
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 19 de outubro de 2021
    ...plaintiffs in overpopulated districts have standing to bring a claim. See Baker , 369 U.S. at 206, 82 S.Ct. 691 ; Fairley v. Patterson , 493 F.2d 598, 603 (5th Cir. 1974) ("[T]he Supreme Court has conclusively established * * * that sufficient damage through underrepresentation to obtain st......
  • People Organized for Welfare and Employment Rights (P.O.W.E.R.) v. Thompson, s. 83-1115
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 14 de fevereiro de 1984
    ...2205, 45 L.Ed.2d 343 (1975); Minority Police Officers Ass'n v. City of South Bend, 721 F.2d 197, 202 (7th Cir.1983); Fairley v. Patterson, 493 F.2d 598, 604 (5th Cir.1974). If P.O.W.E.R. had sustained a personal injury, it might be able to assert the right of another, as the owner of a bar ......
  • League of Women Voters of Nassau County v. Nassau County Bd. of Sup'rs, 326
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 22 de maio de 1984
    ...these plaintiffs cannot claim any injury. The issue whether plaintiffs such as these have standing was addressed in Fairley v. Patterson, 493 F.2d 598 (5th Cir.1974). There, the Fifth Circuit held that the plaintiffs, who had not alleged that they resided in underrepresented voting district......
  • Shimman v. International Union of Operating Engineers, Local 18
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 1 de outubro de 1984
    ...to go to court, may result in a fee award for the plaintiff. See Carter v. Noble, 526 F.2d 677 (5th Cir.1976); Fairley v. Patterson, 493 F.2d 598 (5th Cir.1974); Monroe v. Board of Commissioners, 453 F.2d 259 (6th Cir.), cert. denied, 406 U.S. 945, 92 S.Ct. 2045, 32 L.Ed.2d 333 (1972); McEn......
  • Request a trial to view additional results
2 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT